search
top

Tenth Circuit Upholds Ban on Gun Possession by Illegal Aliens

This is going to be one of those posts where I shake the ant farm a bit, because I think this is one cases where the prejudices of the left and right will conspire to make a ridiculous mess out of something that should really be quite simple. But people being the way people are, I accept that this is a subject of great complexity, so let me play devil’s advocate for a bit.

I tend to think the right to bear arms, being fundamental, applies to all people, but with a federal judiciary that wants to drag the whole “INTERMEDIATE SCRUTINY MEANS A WEAK RIGHT TO BEAR ARMS!” meme forward, this is a less damaging opinion on the subject than I could have imagined.

If the right’s “central component,” as interpreted by Heller, 554 U.S. at 599, is to secure an individual’s ability to defend his home, business, or family (which often includes children who are American citizens), why exactly should all aliens who are not lawfully resident be left to the mercies of burglars and assailants? That must be at least one reason behind the wave of challenges to § 922(g)(5). But courts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order.

Why must the courts defer to Congress? What special insights does Congress have as to the constitutionality of laws? As offensive  as it may be to conservative populism, I’ve never been able to reconcile the idea of fundamental rights with the idea of rights of citizenship as it currently stands. For instance, this quote from the opinion, citing precedent in the 1950 case of Johnson v. Eisentrager:

The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

I think this is only true, because as a society, we’ve had a poor concept of rights. If a right is fundamental, then it is fundamental; it’s exercise cannot be infringed by any dictate of Congress, or the Executive, or the states (by the 14th Amendment). If a right is a citizenship right, rather than a natural one, such as voting, then it is not a true, inviolable natural right, but one exercised by a citizen, subject to the laws regarding citizenry.

I think whether the right to keep and bear arms is a right of citizenship, or a fundamental natural right is a debate worth having. But to a large degree, the courts have already declared it a fundamental one. I happen to believe that is correct, and it should have consequences, conservative populism railing against illegal immigration, or liberal dogma railing against gun right be damned. One of those consequences is that all individuals have a right self-preservation, and thus a right to the tools necessary to protect those ends.

I think if you want to ban firearms possession, mere possession, from illegal aliens, the government should have to prove, beyond a reasonable doubt, two things; that the possession was in furtherance of an unlawful act (e.g. that the illegal immigrant was here robbing banks, dealing drugs, etc) and that he did indeed possess the weapon in furtherance of those acts. That’s a far cry from, say, conducting an immigration raid of a business in a shitty neighborhood, and finding a pistol in the personal possession of one of the of the unlawful immigrants who was busted. I have no issues with prosecuting people who are here illegally and deporting them, but a fundamental right is a fundamental right, and the idea that the right to keep and bear arms is a fundamental right has consequences. One of those is that is a right of all people, regardless of citizenship or immigration status. If you want to prosecute someone for gun possession, then you need to prove their possession was in furtherance of an unlawful end, and not merely possessed for lawful self-protection.

21 Responses to “Tenth Circuit Upholds Ban on Gun Possession by Illegal Aliens”

  1. RicksCafe45 says:

    Excellent point. When we’re talking about unalienable rights – protected by the constitution (Not granted by), I think your view is correct – it applies regardless of citizenship. The founding fathers I believed used the phase “endowed by their Creator” but I don’t think it matters much if you believe in a “Creator” or not, you exist therefor so do your rights. Immigrent or not, legal or not.

  2. Hank Archer says:

    I agree — and I’ll go one step further — non-incarcerated felons should also have self-defense rights. If it isn’t safe to allow them to be armed then keep them locked up.

  3. Andy B. says:

    To Sebastian’s entire essay I’ll say, “Damn, I wish I’d said that!”

  4. Chris says:

    Are illegal aliens exempt from First Amendment rights? Freedom of assembly, freedom of the press, freedom of worship?

    Are they exempt from the prohibition on unlawful search and seizure? The prohibition on being forced to implicate themselves?

    While I have no desire to have illegal aliens in this nation I have to say that I must agree with the principle here. There can be no federal rule prohibiting an illegal alien from keeping and bearing arms.

    A citizen can still be held on charges for giving/selling/trading a firearm to the illegal alien. Your right to keep and bear does not include a right to arm non-citizens.

    The natural right to self-defense must be honored barring reasons to keep someone unarmed (known to be violent or impaired).

    Ideally we should deal with only a handful of illegal aliens rather than the millions that are currently here.

  5. Glenn says:

    If they are here illegally then doesn’t that violate federal law? If so don’t they forfeit certain rights? So does this mean tourists should also be able to walk into bubbas gun emporium and pick up an ak47 while visiting wallyworld? I’m sorry but the argument that illegals should gain constitutional rights just because they are living here is ludicrous.

    • Sebastian says:

      If they are here illegally then doesn’t that violate federal law?

      Yes, but generally speaking, deprivation of fundamental rights should require due process.

      So does this mean tourists should also be able to walk into bubbas gun emporium and pick up an ak47 while visiting wallyworld?

      I think it’s debatable. There’s a difference between regulating a non-resident from purchase I think can be viewed differently from mere possession. That’s a bit inconsistent, since a right to possess should entail a right to acquire, but I’m open to arguments as to how to distinguish possession from purchase for people in the country unlawfully.

      But the idea that illegal immigrate have conditional rights, I don’t think should be controversial. They are generally entitled to worship as they please, speak freely, be secure in their property and personal effects against unreasonable searches and seizures. They are entitled to a fair trial by an impartial jury, to representation by counsel, and be protected against unreasonable bail and cruel and unusual punishment. They can’t be compelled to testify against themselves.

      Is the right to keep and bear arms different? Or is it a citizenship right as opposed to a fundamental right?

      • mobo says:

        “Is the right to keep and bear arms different? Or is it a citizenship right as opposed to a fundamental right?”

        We already know that the courts say it’s a fundamental right. But apparently ‘intermediate scrutiny’ is little more than a bump in the road facing the legislator, while ‘strict scrutiny’ is a much larger barrier.

    • Sebastian says:

      I guess I would also bring up this question… if someone is visiting from, say, Austria, and brings their pistol, filing all the proper paperwork. Should they be able to legally carry said firearm for self-protection, assuming they have obtained the proper licenses to do so?

      • Adam says:

        Assuming there are no state laws banning or limiting said carry of their personal firearm, I would think that person would be in the clear. As you so eloquently stated, unless they can prove “possession was in furtherance of an unlawful act”, they should not be banned to the RIGHT to self-protection.

      • harp1034 says:

        That person would not be here illegally. Foreigners bring firearms here to go hunting. While here they are legal.

  6. Cymond says:

    When I first joined the shooting community, I gave an ear to the semi-extreme but do-nothing JPFO. I finally unsubscribed when they did a poll on this subject two years ago. JPFO had rambled on and on about how all gun control and the ATF were illegal. Their poll results? Nearly 89% of respondents claimed that immigrants have no 2nd Ammendment rights. Of course, this is irreconcilable with the view that self-defense (and the tools of defense) is a fundamental human right. You cannot simultaneously claim that we have an absolute unrestricted right to arms but that it pivots on one’s immigration status. If the ‘right’ flows from the mere law, then it can be taken by the law as well. That is a privilege, not a right.

  7. jtbolt says:

    I’m happy Heller went as far as it did. It could have gone the other way. But that case said both ‘fundamental right’ and ‘subject to reasonable restrictions’

    If I renounce my citizenship I become a prohibeted person. And that wasn’t adjudicated, no hearing was held.

    There are bigger fish to fry, and devote our resources to, before we get around to idealogical purity and eliminate all classes of prohibited persons, (starting with illegal aliens and people that smoke one doobie a year).

    • mobo says:

      “If I renounce my citizenship I become a prohibeted person. And that wasn’t adjudicated, no hearing was held.”

      I’d say that this should be open to challenge. This rule went into effect *before* Heller and McDonald.

    • jetfxr69 says:

      Simply saying “I renounce my citizenship” doesn’t actually make it so. There is still due process, in that you have to actually write it down, and notify appropriate governmental entities.

      From the Department of State website.

      A person wishing to renounce his or her U.S. citizenship must voluntarily and with intent to relinquish U.S. citizenship:

      appear in person before a U.S. consular or diplomatic officer,
      in a foreign country (normally at a U.S. Embassy or Consulate); and
      sign an oath of renunciation

      Renunciations that do not meet the conditions described above have no legal effect. Because of the provisions of section 349(a)(5), Americans cannot effectively renounce their citizenship by mail, through an agent, or while in the United States. In fact, U.S. courts have held certain attempts to renounce U.S. citizenship to be ineffective on a variety of grounds, as discussed below.

      Hope I got the html right.

  8. McThag says:

    Many rights are forfeit once a certain legal line is crossed regardless of the amount of government applied.

    An analogy can be made about someone breaking into my house. What rights do they have before breaking in and what rights do they have after entry? I am perfectly within my rights to shoot them dead for doing so. I am not required to convene a trial before killing them.

    The same sort of thing applies to that illegal. His natural rights extend only as far as he respects others rights. As a nation we have the right to control who is allowed in and who isn’t. The illegal has ignored this right and power and thus forfeits his natural right to possess a firearm while they are illegally in the country. That right is forfeit the moment he crosses the border, due process is just a method of officially confirming that.

    I, for one, am growing sick of becoming a second-class citizen in my own nation while people who shouldn’t be here are given rights and powers in excess of me.

    • Divemedic says:

      Your analogy does not hold water. You cannot execute a person merely because they are in your home. When a person enters your home, you may legally shoot him because he is a threat to you, not because he is in your home.
      Before you mention it, even the Castle Doctrine does not allow this. What the Castle doctrine does, is create a legal presumption that anyone in your home is a threat to your safety, but that presumption is rebuttable. What I mean by that is if the prosecution can prove that he was not a threat at the time, the Castle doctrine will not protect you. For example, if a person breaks into your home, and when confronted he throws up his hands and drops to his knees in surrender, and you kill him anyway, the prosecution can still get a conviction if they can prove that this is what went down.
      Your rights cannot be taken from you without due process FIRST. A person in innocent until proven guilty, and that includes illegal immigrants. Due process is not merely a formality.

  9. Rivrdog says:

    I recall a Speech professor telling my class in college almost 50 years ago that all logic has a starting point, and from that point, all facts must proceed, or the entire chain becomes illogical and not factual.

    Lawyers will recognize this principle in the “fruit of the poisonous tree doctrine”.

    The original condition of an illegal alien means having committed a felony, so how can a right that is ONLY conferred on non-felons ever be extended/granted to felons?

    When the basic tenets of logic are left out of an argument, that argument can never be said to be valid at any level.

    In other words, logic must precede every legal opinion, or that opinion fails it’s first and most important test.

    • Divemedic says:

      The difference between “illegal alien” and “felon” is fundamental: The felon has been afforded due process.

      People who actually understand the Constitution will recognize the principle as “the Fifth Amendment” which reads:
      “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, … nor be deprived of life, liberty, or property, without due process of law…”

      It doesn’t say no CITIZEN shall be deprived of life, liberty, or property without due process, it says no PERSON.

  10. Andy B. says:

    To the best of my recall, the constitution does not refer to the rights of “citizens” at all, except for defining qualifications for voting and holding public office, and in the 14th Amendment. Otherwise, all references are to the rights of “persons” or “the people.” In addition, it may be recalled that the constitution does not imbue the federal government with the power to control immigration; only naturalization. While that principle was later overpowered by activist judges in the late 19th century, it would have to be concluded that at the time of ratification of the Bill or Rights, it was intended that all rights extend to everyone present in the country; in fact I believe Jefferson addressed the rights of “our alien friends” in the Kentucky Resolution, in the context of opposing the Alien and Sedition Acts.

    Feel free to criticize the “facts” as I have stated them, since my references are on my other machine which is remote from me at the moment.

  11. Sebastian says:

    I should note that I’m playing devil’s advocate a bit here. Not because I don’t believe what I wrote, but because I agree that gun rights for illegal aliens is a cause that’s effectively lost. No chance in the federal judiciary accepting the idea, and to be honest, I doubt most Americans will either.

    So we’ll end up with a fundamental right that’s sort of hybridized with a citizenship right. It won’t make sense, but it’s reflecting the lack of ideological consistency among the public.

  12. Andy B. says:

    we’ll end up with a fundamental right that’s sort of hybridized with a citizenship right. . .

    Exactly. And we remember what happened in a certain European country when that was established, followed by declassification of certain citizens as no longer “real” citizens.

    It is not an acceptable principle to apply to fundamental human rights.

    What we are experiencing is almost perfectly analogous to things that were attempted during the Know Nothing era, when being a “Real American” became defined (fortunately, not often by law) as being based on ethnicity and religion. Many of our g-grandparents experienced it, on the victims’ side. There is a small but influential minority trying — often with too much success — to persuade us to return to those days.

Trackbacks/Pingbacks

  1. SayUncle » Gun bans for illegal aliens - [...] Upheld by 10th circuit [...]
  2. Illegal Aliens and Fundamental Rights | Daily Pundit - [...] Aliens and Fundamental Rights Posted on May 9, 2012 11:30 am by Bill Quick …
  3. Prohibition Against Illegal Aliens Owning Firearms Upheld at A Geek With Guns - [...] Shall Not Be Questioned I learned that the 10th Circuit Court upheld the prohibition on illegal aliens owning [...]
top